Exhibit 10.4
IMARX THERAPEUTICS, INC.
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
This Separation and Release of Claims
Agreement (“Agreement”) documents the agreement between
you, Kevin Ontiveros and ImaRx Therapeutics, Inc.
(“IMARX”) concerning the termination of your status as
an employee of IMARX
RECITALS
Your employment with IMARX will be
terminated as of June 11, 2008.
You have previously entered an
Executive Employment Agreement with the Company that entitles you
to certain benefits in the event of the termination of your
employment under certain enumerated circumstances (the
“Employment Agreement”). In connection with the
termination of your employment, pursuant to the terms of the
Employment Agreement you are entitled to the severance benefits set
forth in this Agreement.
You have also entered into an
Indemnification Agreement, with the Company dated July 12,
2007 under which the Company has agreed to indemnify you in certain
circumstances as described in said agreement (the
“Indemnification Agreement”).
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual promises, covenants and agreements set forth herein, the
parties mutually agree as follows:
1. Effective Date . This
Agreement is effective on the eighth (8 th ) day following
your signing this Agreement, provided that you do not revoke your
execution of this Agreement as provided in Paragraph 12
below.
2. Severance Benefits .
In reliance on the releases and agreements set forth in this
Agreement and your execution of the Consulting Agreement between
you and the Company effective June 12, 2008, you are entitled to
the following severance benefits in connection with your separation
from employment with the Company effective June 10, 2008 (the
“Separation Date”).
(a) You
will receive severance pay equal to six (6) months of your
annual base salary as in effect on your Separation Date, payable in
one lump sum payment in the gross amount of $103,260 from which
normal payroll withholdings will be made. Payment will be made to
you promptly following the date this Agreement becomes effective
pursuant to the terms of Paragraph 12.
(b) If
you are eligible for COBRA coverage and elect to receive COBRA
benefits, IMARX will pay for your COBRA coverage including medical,
dental and vision insurance, for six (6) calendar months
beginning July 1, 2008 through December 31, 2008.
Thereafter, if you choose to do so, you may continue COBRA coverage
by paying the entire premium for the remaining period of your COBRA
eligibility.
1
(c)
Stock Options . You will receive accelerated vesting for
twelve (12) months for all non-vested stock options granted by
the Company to you prior to your Separation Date, and an extension
of the option exercise period for an additional twelve
(12) months beyond the period set forth in the governing
option documents for such exercise.
3. Consideration Period
. You may take up to 45 days to consider and sign this
Agreement or you may sign it prior to the end of the 45 day
period if you choose to do so. You acknowledge that you have been
given forty-five (45) days after receipt of this Agreement in
which to consider and consult with an attorney regarding this
Agreement and sign it. You acknowledge that you have had an
adequate amount of time in which to consult with any person of your
choice about this Agreement prior to signing it.
4. Release by Employee .
As a material inducement to IMARX to enter into this Agreement and
in consideration for the payment of the amount set forth in this
Agreement, you, for yourself and for all persons claiming by,
through, or under you, hereby absolutely, irrevocably, completely
and unconditionally release and discharge IMARX and any of
IMARX’s subsidiaries, affiliates, successors, assigns,
agents, directors, officers, employees, representatives, attorneys
and all persons acting by, through, under or in concert with any of
them (“Releasees”) of and from any and all claims,
demands, charges, grievances, damages, debts, liabilities,
accounts, costs, attorney’s fees, expenses, liens, future
rights, and causes of action of every kind and nature whatsoever
based on or in any way arising out of events or omissions occurring
prior to the effective date of this Agreement
(“Claims”). The Claims from which you are releasing
Releasees herein include, without limitation, breach of implied or
express contract, including contract of employment, breach of
implied covenant of good faith and fair dea
